Washington and Spokane Restrict Employers’ Use of Criminal Background Checks

State-Wide: Washington Fair Chance Act

State-wide, the Washington Fair Chance Act becomes effective June 7, 2018. Key aspects of the new law are:

• Employers may not ask an employment applicant orally, on an application, or otherwise in writing, about the applicant’s criminal record until the employer makes an initial determination that the applicant is otherwise qualified for the position. Once the employer makes that determination, the employer may then inquire about an applicant’s criminal record.
• Employers may not advertise employment in a way that excludes people with criminal records from applying, such as ads stating “no felons,” “no criminal background,” or something similar.
• Employers may not automatically or categorically exclude individuals with a criminal record from consideration before making an initial determination that the applicant is otherwise qualified for the position. Employers may not reject an applicant who does not disclose their criminal background before the employer makes an initial determination that the applicant is otherwise qualified for the position.

The new law does not address what employers may or may not do if, after making an initial determination that an applicant is otherwise qualified for a position, the employer learns of an applicant’s criminal background. The new law also does not apply to several types of employers, such as those whose employees have unsupervised access to children or vulnerable adults, financial institutions, law enforcement agencies, or organizations seeking nonemployee volunteers. The full text of the law is here.

Spokane: Spokane Fair Chance Hiring Ordinance

Employers in Spokane face additional restrictions under the Spokane Fair Chance Hiring ordinance, which becomes effective June 14, 2018. The Spokane ordinance includes many of the same restrictions in the new state law, plus some others:

• Employers may not advertise in a way that keeps people with criminal backgrounds from applying, using phrases like “no felons,” “no criminal background,” and others.
• Employers may not ask applicants about, or obtain information about, an applicant’s criminal background until after the applicant has participated in an in-person or video interview or received a conditional offer of employment. 
• Employers may not disqualify an applicant from employment because of their criminal background unless the criminal background is related to significant job duties of the position.
• Employers may not reject an applicant for failing to disclose their criminal background before initially determining whether the applicant is otherwise qualified for the position.

Seattle: Fair Chance Employment Ordinance

Employers in Seattle should remember that, since 2013, in addition to similar restrictions on job postings and inquiries into an applicant’s criminal background, employers in Seattle face additional restrictions. An employer who makes a hiring decision based on an applicant’s criminal background must notify the applicant of the reason for the decision and hold the position open for two days to give the applicant an opportunity to explain or correct the criminal background information. An employer can only reject an applicant based on criminal background after engaging in an individualized assessment of the applicant, the applicant’s criminal background, and the legitimate business reasons for rejecting an applicant based on their criminal background. In addition, Seattle employers are required to display posters in their workplace to inform employees of their rights under the Seattle ordinance. 

What Employers Should Do

So what should employers do? All employers in Washington, whether in Seattle, Spokane, or elsewhere, should review the state and local laws applicable to them and evaluate their advertising and hiring practices. Employers should review their applications, advertisements, and other hiring documents to ensure they are not improperly discouraging applicants with a criminal background from applying. Employers should also train those involved in the hiring process to ensure that they are not inadvertently exposing the employer to liability by asking about applicants’ criminal background too early in the process, and are appropriately taking applicants’ criminal background into account in the hiring process. Employers may consider consulting outside counsel to help with these reviews and training. 

For questions about how this new law affects your business, assistance in reviewing recruiting and hiring documents, and training those in the hiring process, please contact Brian Keeley.